RAFIQ, J. - (1.) THE Union of India has come up in this writ petition against the order dated 2. 7. 1996 passed by Estate Officer (SDM Jhalawar) and dated 10. 10. 2001 by the Appellate Authority (District Judge, Jhalawar) respectively under Sections 4 and 9 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (for short `the Act of 1964 ).
(2.) FACTUAL matrix of the case is that the Municipal Council, Jhalawar filed an application under Section 4 of the Act of 1964 inter alia on the premise that the building in which the post office, Mangalpur at Jhalawar was housed was let out to Union of India by the Municipality on 1. 1. 68 at the monthly rent of Rs. 75/ -. The Union Government owes to the Council payment of sum of Rs. 4,500/- towards arrears of rent as on 19. 1. 95. It was therefore prayed that the order for eviction of the Post Office be passed and vacant possession of the building should be ordered to be handed over to the Municipal Council. The Union of India filed reply to the aforesaid application on 6. 8. 1986, inter alia, asserting therein that it was not a tenant of Municipal Council, Jhalawar in the aforesaid building nor has it taken the said building on rent from the Municipal Council on 1. 1. 68 as alleged. Part of the building was being used as post office and other part, as residence of the post master for last so many years and in any case, much prior to 1. 1. 68. Ownership of the said building does not vest in the Municipal Council nor does the Municipal Council is having title over the same. It has therefore no right to get the petitioner evicted from the said building. In fact, the case of the Union Government was that the post office was situated in that building for last more than 60 years. This building earlier belonged to the erst- while State of Bhilwara and the State had constructed the same for the purpose of post office. With the merger of the States into the unified State of Rajasthan and then the Union of India, the ownership of the building has come to be vested in the Union of India. In any case, this can be a contentious issue only between the State Government and the Union of India and the Municipal Council has nothing to do with the ownership of the building. It was therefore prayed that the application filed by the Municipal Board be rejected. The learned Sub Divisional Magistrate, Bhilwara in exercise of his powers as Estate Officer by his order dated 2. 7. 96 held that the building in question was the property of Municipal Board, Bhilwara, and that the petitioner was liable to pay to the Council monthly rent. It concluded that the petitioner had deposited the rent with the Municipal Council on 1. 1. 68 and thereafter failed to make payment of the rent. The witness of the petitioners DW-1 had also in his statement stated that the post office had been making payment of the rent to the Municipal Council. But later the Union of India gave a proposal for purchasing the said building from the Municipal Council. This proves that this building was property of the Municipal Council and the post office was liable to be evicted from the same. It was, therefore, directed that the petitioner should vacate the building premises within 30 days or else action be taken against them for eviction in accordance with the provisions of Section 5 of the Act. The petitioner filed an appeal before the Appellate Authority (District Judge, Jhalawar) against the aforesaid order dated 2. 7. 96, who by his order dated 10. 10. 2001 however partly allowed the appeal and held that the Estate Officer has not given any finding whether the tenancy had been determined by the Union of India or any notice for determination of tenancy has been served by the Council upon Union of India. Possession of the petitioner, therefore cannot be described as unauthorised occupation and the order of eviction passed on 2. 7. 96 was therefore unsustainable in law. Accordingly the order dated 2. 7. 96 was set aside and matter in effect stood remanded back to the Estate Officer again for decision afresh. The Union of India has filed the present writ petition against the aforesaid two orders dated 2. 7. 96 and 10. 10. 2001. I have heard Shri B. N. Sandu, the learned counsel for the petitioner and Shri Subhash Jain, the learned counsel for the Municipal Council and perused the material on record.
(3.) LEARNED counsel for the petitioner Shri B. N. Sandu, has argued that the building in question has been in possession of and used for the post office. It is located in Brijnagar area known as Post Office, Mangalpura. The exruler of the then State of Bhilwara has constructed the said building in the year 1936 and ever since it is being used by the post office. Thereafter the State of Bhilwara merged into the State of Rajputana, which was later reorganised as State of Rajasthan. The State of Rajasthan on attainment of freedom by the nation became Part-B State of Union of India. With the adoption of the Constitution of India, the said building came to be vested in Union of India by virtue of Article 295 of the Constitution. The Municipal Council, Bhilwara illegally raised a demand of Rs. 4,500/- as arrears of rent for the period from 1. 7. 68 till 31. 8. 1982. Only because the Municipal Council raised the demand and the petitioner did not make payment of the same, the Estate Officer and, for that matter, the Appellate Authority does not get the jurisdiction to declare the petitioner Union of India as tenant of the Municipal Council. Neither the Estate Officer, nor the Appellate Authority examined the pointed arguments raised by the petitioner with regard to Article 295 of the Constitution of India that the property in question came to be vested in the Union Government and therefore it could not be adjudged as tenant of the respondent Municipal Council. Even if by mistake, the officials of the postal department made payment of rent for a particular month to the Municipal Council, that by its cannot be taken as a conclusive proof of the ownership of the Municipal Council. As regards the question of title, if at all the Municipal Council claims to possess the title of the building in question, it can do so only by filing a Civil Suit in the appropriate Court of law. The learned Estate Officer as well as the Appellate Authority have therefore erred in law in not requiring the Municipal Council to first get its title or ownership over the building in question established before proceeding to examine the matter. He, therefore prayed that the writ petition be allowed and the impugned orders be set aside and the property in question should be declared as that of Union of India. Shri Subhash Jain, the learned counsel for the respondent Municipal Council opposed the writ petition and argued that the Estate Officer has passed the order dated 2. 7. 96 after providing full opportunity of hearing to the petitioner in as much as the petitioner had the opportunity to produce evidence, both documentary and oral, and the petitioner actually examined certain witnesses in support of its case. Findings arrived at by the learned Estate Officer that the petitioner was tenant in the building of Municipal Council has not been reversed by the learned Appellate Authority. This being a finding of fact cannot be reappreciated and reopened by this Court in exercise of its writ jurisdiction under Article 227 of the Constitution of India. He argued that Article 295 of the Constitution would not be attracted to the facts of this case because the disputed property was not given to the post office by the erstwhile rulers of the State of Bhilwara either under any covenant or rule or agreement. He further argued that this objection has been taken by the Union of India for the first time in the writ petition. Moreover, this argument also ignores the fact that the petitioners themselves had once paid the monthly rent to the Municipal Council. It is settled law that if some one has acknowledged himself as tenant, he shall always be treated to be a tenant. In spite of ample opportunities, if the petitioner failed to prove its title or ownership over the building in question, it cannot be allowed to continue in possession of the building in question. It was therefore prayed that the writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record. ;